Tuesday, January 31, 2012

The the ripple effect of the Penn State sex scandal and cover-up continues to impact state legislatures across the country. The Penn State Effect is the knee-jerk reaction to a situation resulting in legislation that does more harm than good.

The West Virginia Senate Judiciary Committee unanimously approved legislation to toughen the state's child abuse reporting laws, moving the bill to the full Senate for passage, according to theCharleston Daily Mail.

Passed by a voice vote of committee members, the bill expands the categories of people who are required by law to report any suspected child abuse or neglect and increases the penalties for those who fail to do so.

In West Virginia, school, law enforcement, and health care professionals are required to immediately report such cases to police. Faculty at public or private institutions — including universities — are legally bound to report such abuse to the institution's president, who is then responsible for calling police.

Lawmakers in Louisiana are also looking to expand child abuse reporting requirements. Louisiana's legislative efforts could reach every citizen.Failure to report an act of child abuse would become a felony under legislation filed for the spring session of the Louisiana Legislature.

Senate Bill 4, by Senator J.P. Morrell, would set a maximum fine of $10,000, a jail sentence of five years or both for violators. More importantly, the law would expand reporting requirements to any citizen who witnesses abusive acts and fails to report them.

Currently, 18 states require everyone to report child abuse. The other states require varying categories of people who come into contact with children in a professional capacity to do so. But many child welfare experts say that expanding the pool of mandated reporters could end up harming children rather than helping them, reporting Reuters. For one thing, child welfare investigators may become overwhelmed with specious reports. The time spent on those cases could take away from time investigating real cases of abuse.

"You'd have to employ an awful lot more case workers to deal with all these reports," Theo Liebmann, who directs the Hofstra Child Advocacy Clinic told Reuters. "You'd get some crazy stuff."

There is no statistical evidence that states with more expansive mandatory reporting laws protect children better than those with more restrictive definitions, experts say. In 1998, the lack of evidence about the effectiveness of mandatory reporting prompted the National Research Council to recommend not extending mandatory reporting laws to include cases of domestic violence.

Monday, January 30, 2012

The members of Pennsylvania's Justice Reinvestment Working Group, charged with looking into ways to cut costs without jeopardizing public safety, include Co-Chairs Corrections Secretary John Wetzel and PCCD Chair Mark Zimmer.

According to the Harrisburg Patriot-News, the rest of the work group is comprised of:

Other members of the group include: Linda Rosenberg, executive director of the Pennsylvania Commission on Crime & Delinquency; Carol Wilson Hummel, warden of the Indiana County Jail; Brinda Carroll Penyak, deputy director of the County Commissioners Association of Pennsylvania; Amy Rosenberry, executive director of the Pennsylvania Chiefs of Police Association; and Carol Lavery, Office of the Victim Advocate.

Rates of sexual violence in the United States are comparable to those in the war-stricken Congo?

Christina Hoff Sommers, a resident scholar at the American Enterprise Institute and author of “Who Stole Feminism?” and “The War Against Boys," takes issue with the CDC's estimates of sex offending in a Washington Post op-ed.

Sommers writes that the National Intimate Partner and Sexual Violence Survey found that, in the United States in 2010, approximately 1.3 million women were raped and an additional 12.6 million women and men were victims of sexual violence. It reported, “More than 1 in 3 women and 1 in 4 men have experienced rape, physical violence and/or stalking by an intimate partner in their lifetime."

Sommers declares, "The agency’s figures are wildly at odds with official crime statistics. The FBI found that 84,767 rapes were reported to law enforcement authorities in 2010. The Bureau of Justice Statistics’ National Crime Victimization Survey, the gold standard in crime research, reports 188,380 rapes and sexual assaults on females and males in 2010. Granted, not all assaults are reported to authorities. But where did the CDC find 13.7 million victims of sexual crimes that the professional criminologists had overlooked?"

Sunday, January 29, 2012

The 2nd Execution of 2012
Convicted killer Rodrigo Hernandez was executed at a Huntsville Prison last week for raping and strangling a Texas woman in 1994.

Hernandez said little in the moments before he died, according to the Houston Chronicle."I want to tell everybody that I love everybody," he said. "We are all family, people of God almighty. We're all good. I'm ready."

As the lethal injection took its course, reporters heard him say, "This stuff stinks, man. Almighty," although a state transcript released minutes later quoted it as, "This stuff stings, man," reported the Chronicle.

Hernandez was condemned after being convicted in the murder of a San Antonio woman, Susan Verstegen, whose slaying was a cold case until 2002, when a DNA sample Hernandez provided as a condition of his parole for an assault in Grand Rapids, Michigan, matched evidence collected in the San Antonio killing. After Verstegen was killed, her body was put in a 55-gallon drum behind a baseball field.

Hernandez maintained his innocence through it all, but recanted moments before execution.

“It still doesn't seem real. I did not commit this murder; I'll take that to the grave,” he told the San Antonio Express-News recently. “My grandma raised me to respect women.” He described himself as a “family man.”

In 2009, while Hernandez was on death row, Michigan detectives also connected him to the 1991 rape and fatal shooting of Muriel Stoepker, 77, a homeless woman.Stoepker was shot several times in the head with her body dumped on a parking-lot doorway at GRCC. She was once a successful legal secretary but suffered mental illness that eventually put her on the street.

Hernandez declined to talk to a Michigan detective in 2010 about Stoepker's slaying, and again when interviewed this month. But in a letter to an Express-News reporter days before his execution, he wrote, "I didn't do it; I payed (sic) for (oral sex), that's it, that's where they found my DNA."

When it became apparent that Hernandez's life would not be spared or his execution postponed, he admitted he shot and killed Muriel Stoepker near Grand Rapids Community College campus, and raped and strangled Susan Verstegen whose killing in San Antonio led to his execution.

“I can tell you, Mr. Hernandez did not want (the execution) to happen,” Michigan State Police detective Sgt. Sally Wolter said after the execution, reported the The Grand Rapids Press.

The pardons by out-going Mississippi Governor Haley Barbour have touched on issues around the nature of redemption and mercy for the U.S. which has one of the highest incarceration rates in the world, reported the Christian Science Monitor.

In Mississippi, the debate has been overshadowed by the disappearance of Joseph Ozment's. He was one of five governor mansion trustees pardoned by the governor. Trustees are prisoners who upkeep the mansion and grounds for meager prison wages. Ozment was convicted of the point-blank execution-style shooting of a store clerk in 1992 convenience store robbery near DeSoto, MS.

According to testimony, Ozment fired the fatal two shots at the clerk as he crawled across the store's floor. At the time, Ozment testified he feared the clerk would be able to identify him. He was serving a life sentence.

While the four other former mansion trustees that were released have checked back in with the judge, and vowed to maintain daily contact, Ozment has disappeared.

Attorney General Jim Hood called Barbour's mass pardons “a slap to the face” of victims and the judicial system. He is offering a reward for information that helps locate Ozment who was last seen in northwest Mississippi, reported the Christian Science Monitor.

The search has raised unprecedented issues, including the extent to which the state can legally force Ozment, who's not wanted for any crime and now has a clean criminal record, to report to a judge.

Saturday, January 28, 2012

The Washington legislature is considering legislation to abolish the death penalty.

Capital punishment is rare in Washington. Since the current law was passed in 1981, just five people have been executed, most recently Cal Coburn Brown in 2010. The state has carried out two more executions than Pennsylvania. All three of Pennsylvania's executions were of volunteers--offenders who wanted to be executed.

Brown was executed for the rape and murder of Holly Washa in Seattle. After torturing her for a period of time, he killed her and left he body in the trunk of a car at the Sea-Tac airport. Brown then got on a plane for California and tried to sexual assault and kill another woman. Moments before his execution, Brown complained that he only killed one person and Washington serial killer, the Green River Killer Gary Ridgeway, killed 48 women without being executed.

Although, Washington has carried out executions Senator Mike Carroll believes, “We don’t have a death penalty in the state of Washington," reported the Olympian.

Carrell said capital punishment is little more than a “bargaining chip” for prosecutors to use to force plea deals. But he thinks it’s crucial for prosecutors to have that threat, which was used, for example, to force serial killer Ridgway to reveal the locations of some of his victims’ bodies, reported the Olympian. Carrell's position on the death penalty is not much different that condemned killer Cal Coburn Brown.

Opposing executions are the American Civil Liberties Union and a coalition of advocates planning to lobby lawmakers and testify at a public hearing today. Opponents point to death sentences around the country that have been overturned upon finding new evidence, reported the Olympian. This is a bit of a misleading argument. There have been only 17 cases across the country since 1989 where an inmate on death row was released due to DNA testing.

Some states have rethought capital punishment. Last year, Oregon Gov. John Kitzhaber put a halt to executions.Illinios, New Mexico, New Jersey and New York have all recently abolished the death penalty. New Mexico is considering bringing it back.

In a time of budget cuts, opponents note the cost of capital cases. A 2006 study by the Washington State Bar Association found the death penalty can add more than $700,000 to court costs.

And Brown’s execution cost about $100,000, according to the Department of Corrections – though it did avoid keeping him imprisoned any longer at a cost of more than $42,000 a year.

Friday, January 27, 2012

In 2006, growing concern about unaccounted for sex offenders whose whereabouts were unknown to law enforcement and the community, caught the attention of Congress.

In response, Congress enacted the Adam Walsh Act (AWA). The AWA created a new federal offense for failing to register as a sex offender as required by the Sex Offender Registration and Notification Act. The AWA also established a baseline standard for states to comply with regarding sex offender registration.

The statute also included an incentive to comply. Failure to comply with the AWA would cause non-complying states to lose 10 percent of their annual federal crime fighting funds. The AWA has not been without controversy and a U.S. Supreme Court decision this week has added to the concern .

In 2001, Billy Joe Reynolds was convicted of a sex offense in Missouri. After he was released from prison, Reynolds registered as a sex offender in Missouri. However, in 2007 he moved to Pennsylvania and failed to register.

Reynolds was indicted and pled guilty to a registration violation pursuant to the AWA. He immediately appealed the conviction, challenging the constitutionality of the AWA, suggesting that the attorney general did not follow proper procedure when establishing an interim rule making the law retroactive.

The Third Circuit upheld the conviction. The court determined that Reynolds did not have standing to challenge the attorney general’s interim rule, finding the AWA itself required Reynolds to update his information, not the subsequent interim rule issued by the attorney general.

This week the U.S Supreme Court disagreed with the Third Circuit and sent Reynolds’ case back to the appeals court. Reynolds does indeed have standing and the appeals court has been ordered to get to the merits of his claim.

"The question before us is whether the act requires pre-act offenders to register before the attorney general validly specifies that the act's registration provisions apply to them," Justice Stephen Breyer wrote for the court. "We believe that it does not."

The high court’s decision did not get to the question of whether the AWA should be applied retroactively. However, it does require the Third Circuit to make that determination. Inevitably, Reynolds’ case will make its way back to the Supreme Court.

The consequences of the AWA not applying to offenders convicted prior to the law’s enactment are enormous. The purpose of the AWA was to provide uniformity to registration requirements that were, prior to the act, a patchwork of differing state statutes that were not compatible or consistent from state to state.

If the AWA does not apply to those offenders convicted prior to the law’s enactment, the primary purpose of the AWA will be thwarted. All sex offenders prior to 2006 will be, once again, governed, for purpose of registration and community notification, by an unwieldy mélange of state statutes.

Thursday, January 26, 2012

Harrisburg – Governor Tom Corbett today encouraged members of the Justice Reinvestment Initiative, a newly-formed panel of judges, lawmakers, state cabinet members and other officials, as they begin studying ways to increase public safety in Pennsylvania and reduce spending on corrections.

“The justice reinvestment working group is here to look at the numbers, the costs, the projections and the system,’’ Corbett told the gathering at the Governor’s Residence this morning. “We look to you to come up with solutions to make our system better. I expect this initiative will help reduce further our crime rate, decrease recidivism and manage corrections spending more efficiently.’’

Led by Mark Zimmer, chairman of the Pennsylvania Commission on Crime and Delinquency, and Department of Corrections Secretary John Wetzel, the group will meet regularly during the next several months to review data analysis, hear from local government representatives, prosecutors and public defenders, victim advocates, treatment providers and others, before crafting policy proposals.

The Justice Reinvestment Initiative is a comprehensive, research-based approach that identifies factors driving the growth and costs in prison and jail populations. The data-driven model is designed to:

· Develop and implement policy options to control and lower the costs of the state’s corrections system;

· Improve offender accountability;

· Reinvest a portion of the savings into the justice system to further reduce corrections spending;

· Reinvest a portion of the savings into the community to prevent crime;

· Measure the impact of policy changes.

Contributing to the project is the Council of State Governments Justice Center in partnership with the Pew Center on the States and the U.S. Department of Justice.

The CSG Justice Center, which has helped policymakers in 15 other states using a justice reinvestment approach, reported the following about Pennsylvania at today’s meeting:

· Between 2000 and 2010, the number of people admitted to prison climbed 46 percent, with much of this growth driven by increases in the number of people convicted of property and drug offenses serving relatively short minimum sentences.

· Over this same period, the number of people in prison grew 40 percent, from 36,602 to 51,312, and annual Department of Corrections spending increased 76 percent, from $1.1 billion to $1.9 billion.

· Despite significant state investments in resident programs for people on parole supervision, a 2011 study showed that recidivism has declined but remains high: nearly half of people (44 percent) released from prison were re-incarcerated within three years.

“Today’s meeting identifies issues that need to be addressed, and I am confident this group will work hard to use the data and other information gathered to make legislative proposals which will try to strike the delicate balance between public safety and reducing costs through improved efficiencies and prison population reduction,’’ Zimmer said.

“The scale of this effort is exactly what Pennsylvania needs to see the complete connections that take place from the time someone is arrested all the way through discharge to parole supervision,’’ Wetzel said. “With the extensive data analysis and stakeholder input in this process, policy makers from across the political spectrum will develop strategies that answer a fundamental question we all ask ourselves: What more can we be doing to increase safety in our communities while getting a better return on taxpayers’ investment?’’

“This is an excellent example of officials working together, across systems, levels of government and parties toward the common goal of improving the safety of our state,’’ Corbett said.

U.S. District Judge Wesley Brown, the oldest sitting federal judge in the nation, died this week at the age 104. He was appointed by President John F. Kennedy and sat on the U.S. District Court in Wichita, Kansas for 50 years, reported Law.com. Brown took senior status in 1979.

Brown was born in 1907 in Hutchinson, Kansas. He was confirmed in 1962 and served as chief judge of the District of Kansas from 1971 to 1977. He earned his law degree in 1933 from Kansas City School of Law.

With Brown's death, the distinction of being the longest-living sitting federal judge goes to U.S. District Judge Robert Kelleher of the Central District of California in Los Angeles, according to Law.com. The 98-year-old judge was appointed by Richard Nixon.

Kelleher, who has been on the bench for 42 years, was born in 1913 in New York. He was a 1938 graduate of Harvard Law School. Kelleher took senior status in 1983.

The longest serving federal judge on record was Joseph Woodrough, who sat for 61 years before he died in 1977, according to Law.com. Woodrough served in the District of Nebraska from 1916 to 1933 and was appointed by President Woodrow Wilson. He was later appointed by President Franklin D. Roosevelt to the U.S. Court of Appeals for the 8th Circuit beginning in 1933.

Wednesday, January 25, 2012

The Pennsylvania Supreme Court has agreed to review a controversial Superior Court ruling overturning the convictions of three men accused of sexually assaulting a West Chester University student almost three years ago, according to the Associated Press.

Chester County District Attorney Joseph W. Carroll called the decision "the worst legal reasoning I have ever seen in an appellate court opinion." Deputy District Attorney Nicholas Casenta Jr. told The Philadelphia Inquirer that prosecutors look forward to arguing the case.

The men were acquitted of rape but convicted of sexual and indecent assault and false imprisonment after the 18-year-old said she was attacked in her dorm room in February 2009.

The three-judge Superior Court said in an unpublished memorandum opinion that it was "manifestly unreasonable" to assume she had not consented, saying she had only minor injuries and there was no evidence that she cried for help or tried to escape, reported the Associated Press.

The death of Joe Paterno has had an enormous effect on the Penn State family. His death will also have an impact on the Penn State sex scandal and cover-up. Paterno’s testimony was vital in the prosecution of Penn State Athletics Director Tim Curley and former Senior Vice President for Finance and Business Gary Schultz.

Paterno testified under oath before the grand jury that Mike McQueary came to his home on a Saturday morning in March 2002 to tell him he had observed former assistant football coach Jerry Sandusky having inappropriate sexual contact with a young boy in the locker room showers at the Penn State football facilities. Paterno testified that the next day he reported the information to his direct superior, Tim Curley.

The Sixth Amendment provides that a defendant has the right, pursuant to the Confrontation Clause, to see and cross examine witnesses against them. The U.S. Supreme Court has held that “the right to confrontation is a trial right” and “[n]ormally the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses.”

"The Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination."

Paterno will be “unavailable to testify” and was not subject to cross-examination in front of the grand jury.

Crawford v. Washington, 541 U.S. 36 (2004) is a landmark Confrontation Clause case holding that "testimonial" statements of an unavailable witness violated the Confrontation Clause unless there was a prior opportunity for cross-examination.

Leaving open the definition of "testimonial" evidence but noting "testimonial" statements at minimum includes statements made to law enforcement officials engaged "in the production of testimony with an eye toward trial" such as "affidavits, custodial examinations, . . . affidavits, depositions, prior testimony, or confessions."

The lack of testimony from Paterno could be both good and bad for the defense. If it is admitted without cross-examination defense counsel will not to be able to explore any additional information known to Paterno or explore any weaknesses in his testimony.

It may be helpful to the defense in that “it is what it is.” Any shortcomings in the testimony will not be able to be rehabilitated by the prosecution. For instance, if the grand jury testimony is not clear as to what exactly Paterno conveyed to Curley and Schultz in terms of the nature of the contact between Jerry Sandusky and the child—there may be some doubt about their responsibility. All they need is a reasonable doubt.

Tuesday, January 24, 2012

The U.S. Supreme Court has ruled that a law requiring sex offenders to update their registration when crossing state lines does not automatically apply to those who committed their crimes before the law was enacted.

The high court ruled 7-2 that Billy Joe Reynolds can challenge his arrest for violating the Sex Offender Registration and Notification Act also known as the Adam Walsh Act (AWA), according to the Associated Press. States were required to implement the Act or be subject to loss of federal criminal justice grant money.

Reynolds was sentenced to 18 month in prison for moving from Missouri to Pennsylvania and not registering as a sex offender in his new state. He challenged the AWA saying his sex offense was before the registration act’s rules were put into place. The Third U.S. Circuit Court of Appeals threw out his lawsuit without ruling on the merits of the claim.

The high court overturned that decision. But Justices Antonin Scalia and Ruth Bader Ginsburg dissented, saying the law applied to pre-Act offenders, reported the Associated Press.

The Supreme Court has bounced the case back to the Third Circuit. The Circuits are split on whether the law applies to sex offenders covicted before the AWA.

Packed prisons have been a problem in Illinois for decades, but experts say the problem has gotten worse in the last few years.Illinois is about 17,000 inmates over capacity, according to WSIL-TV.

"Since Governor Quinn suspended meritorious good time in late 2009, the prison population has grown by almost 4-thousand inmates," says John Maki, the Executive Director of the John Howard Association.

It was common practice to give lower risk prisoners early release for good behavior. But the program was halted after an inmate let out early murdered a woman shortly after his release. Governor Quinn abolished the death penalty in Illinois but saw nothing wrong with hording offenders in understaffed overly crowded correctional facilities.

Maki told WSIL-TV overcrowded prisons are housing inmates in improper conditions, like gymnasiums and dormitory cells with broken windows that allow rodents and birds to fly in. He says that doesn't help rehabilitate the 95% of inmates who return to society.

Maki says overcrowded prisons can be very dangerous for staff. As of August, Big Muddy Prison had a 28 to 1 inmate to staff ratio, while Pinckneyville had 25 to 1. Experts say a safe ratio is more like 12 to 1.

Monday, January 23, 2012

The U.S Supreme Court unanimously ruled that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days, according to Adam Liptak of the New York Times.

The justices divided 5-to-4 on the rationale for the decision, with the majority saying that the problem was the placement of the device on private property. The facts suggested that the police obtained a warrant but did not act on it in a timely manner nor did they carry-out the warrant as intended. The police placed a GPS device on a vehicle while the vehicle sat on private property.

Liptak wrote that the ruling avoided many difficult questions, including how to treat information gathered from devices installed by the manufacturer and how to treat information held by third parties like cellphone companies.

Walter Dellinger, a lawyer for the defendant in the case and a former acting United States solicitor general, told the Times the decision “is a signal event in Fourth Amendment history.”

“Law enforcement is now on notice,” he said, “that almost any use of G.P.S. electronic surveillance of a citizen’s movement will be legally questionable unless a warrant is obtained in advance.”

Though the ruling was limited to physical intrusions, the opinions in the case collectively suggested that a majority of the justices are prepared to apply broad Fourth Amendment privacy principles unrelated to such intrusions to an array of modern technologies, including video surveillance in public places, automatic toll collection systems on highways, devices that allow motorists to signal for roadside assistance and records kept by online merchants, reported Liptak.

When Rodrigo Hernandez was about to be sentenced to prison in 1998 for severely beating a Grand Rapids man, he asked a judge for mercy because he had become a reformed "family man," according to the Grand Rapids Press.

"I have been living an honest life and staying out of trouble," he wrote in a letter. "I consider myself a family man. So I appreciate it if you would give me one more chance to be able to continue my life with my family, better my life and help the community."

What Hernandez failed to tell the judge is that he had committed two as-then unsolved rapes and murders: the 1991 brutal beating, rape and shooting of 77-year-old homeless woman Muriel Stoepker in Grand Rapids and the 1994 killing of a 38-year-old San Antonio woman, Susan Verstegen.

Hernandez is set to be executed Thursday for the murder ofVerstegen. If the execution is carried out he will be the first person executed in Texas in 2012 and only the second person nationwide.

Even as his execution looms he continues with the rhetoric of innocence,“It still doesn't feel real. I did not commit this murder; I'll take that to the grave,” Hernandez said in a recent death row interview. “My grandma raised me to respect women,” reported the San Antonio Express-News.

The evidence paints a very different picture of Hernadez. As a condition of his parole for an assault in Michigan, Hernandez had to submit a DNA sample for a local, state and national database called CODIS. When a match was found a San Antonio Police Department reopened the murder investigation of Verstegen. He confessed and was convicted of Verstegen's murder.

Then, already on death row for Verstegen's murder, a cold case team in Kent County, MI., found his DNA matched a tiny amount saved from an investigation of the 1991 murder of Stoepker who was fatally shot in a parking garage at Grand Rapids Community College.

Hernandez has a clemency petition pending before the Texas Board of Pardons and Paroles and an appeal before the Texas Court of Criminal Appeals.

Sunday, January 22, 2012

Authorities in northwest Ohio have obtained a warrant for Ken Richey a former death row inmate. Richey left a threatening phone message at a county office on New Year’s Eve. The message was directed at one person who considered it a threat, reported the Associated Press.

Officials wouldn’t comment about the content of the message or say to whom the threat was directed.

Richey left death row in 2008 under a plea deal after a federal court overturned his conviction and death sentence because it determined his lawyers mishandled the case.

He spent 21 years on death row after being convicted of setting a fire that killed a 2-year-old girl in 1986 at a Columbus Grove apartment complex. Prosecutors said he started the fire to get even with a former girlfriend who lived in the same building, according to the Associated Press.

Richey denied any involvement. His new defense team contended that investigators mishandled evidence used to convict Richey and that experts used nonscientific methods to determine that gas or turpentine started the fire.

According to the Associated Press, Richey is fighting extradition to Ohio so officials will need a warrant from Gov. John Kasich to bring him back, Putnam County Sheriff Jim Beutler said. It’s not clear how long that will take. He could face up to 10 years in prison if convicted on the latest charges.

Much has been made of New Mexico, New Jersey and Illinois recently abolishing the death penalty. Many observers of the criminal justice system cite these state actions as indicative of the death penalty falling out of favor with the American people.

However, in at least one of those states the death penalty may not be completely gone. New Mexico State Representative Dennis Kintigh has introduced a constitutional amendment to restore the death penalty in certain circumstances, including the murder of a police officer, according to the Associated Press.

New Mexico abolished the death penalty in 2009, replacing it with a sentence of life in prison without the possibility of parole.

Constitutional amendments need voter approval to be implemented. Kintigh is a retired FBI agent. If his proposal clears the Legislature, it will be left to New Mexico voters to decide whether to reinstate the death penalty.

Two men are on death row. Their sentences were not affected by the 2009 law repealing the death penalty.

Saturday, January 21, 2012

Oklahoma prosecutors have a unique and troubling way of raising revenue in these difficult economic times. Although, the Oklahoma program appears to be unique, budget woes have forced prosecutors nationwide to raise funds from offenders by, for example, seizing assets that are connected to crimes, said Scott Burns, executive director of the National District Attorneys Association, reported the Wall Street Journal.

Ronald Wright, a professor at Wake Forest University School of Law in North Carolina, called the Oklahoma program troubling. "It gives prosecutors an economic reason to increase the length of time for people to be on DA supervision," he told the Journal.

Having a financial interest in the disposition of a case creates an incentive to craft a plea that would put more money in the DA's coffers. A case that might have otherwise ended in jail time might be diverted to supervision. In fact, a case that might have been unsupervised or supervised for a shorter period of time is supervised for a longer period to generate supervision fees. On its face the financial interest creates, at a minimum, the perception of a conflict of interest.

The Wall Street Journal points out another point of concern with DA supervision of offenders. "The majority of DA's offices do not have the resources to ensure the same levels of supervision as those provided by a probation officer working for" Oklahoma's prison system, according to the report by the Council of State Governments Justice Center, a nonprofit organization that advises states on public-safety issues. DA supervision "may be inadequate for high- or moderate-risk offenders," the report concluded.

Much of the growth in the programs has come from felons: There are about 10,500 under DA supervision, a number that has almost tripled since 2008. Defense lawyers said prosecutors too often supervise relatively serious drug offenders, including those caught using and manufacturing methamphetamine, reported the Journal.

The Oklahoma legislature established the program in 2003 as a way to generate extra revenue for prosecutors. The state's prison department also supervises probationers, typically higher-risk offenders, and likewise charges a $40 monthly fee.

Friday, January 20, 2012

Last week, the U.S. Supreme Court issued a long anticipated decision on eyewitness evidence. Nearly thirty-three years have passed since the high court took a serious look at the reliability of eyewitness identification.

The decision did not turn out the way that many had hoped. Since the Supreme Court last took up the eyewitness issue, more than 2,000 studies on the topic have been published in professional and academic journals. One study found that eyewitness misidentifications contributed to the wrongful conviction of 76 percent of the first 250 individuals whose cases were overturned by DNA evidence.

The case argued before the U.S. Supreme Court involved Barion Perry. He was convicted of theft based on the testimony of a woman who said she saw the theft and described the suspect as tall and black. Then, without prompting from the police, she went to her window and identified Perry, who was standing outside next to a police officer. The identification was used to convict Perry, despite objections from his lawyers that seeing him next to the police officer could have unfairly influenced the woman’s identification.

Under existing law, judges are required to screen testimony for reliability whenever police are suspected of using suggestive tactics. Such prescreening has been deemed necessary to preserve the fairness of a trial in the face of suggestive police procedures and to deter police from creating “suggestive circumstances” that point to a specific suspect.

Perry’s lawyer wanted the court to expand the prescreening practice to all identifications made under suggestive circumstances. However, the Supreme Court affirmed a decision from the New Hampshire Supreme Court that the testimony was allowable because police did not create the suggestive circumstance.

Justice Ruth Bader Ginsburg, writing for the majority, said there was no reason to treat most eyewitness evidence differently from other potentially flawed evidence. “The jury, not the judge, traditionally determines the reliability of evidence,” she wrote.

“The potential unreliability of a type of evidence does not alone render its introduction at the defendant’s trial fundamentally unfair,” wrote Ginsburg, noting cross-examination, jury instructions and the rules of evidence are sufficient safeguards.

The sole reason to impose a judicial prescreening process is to deter police from creating “suggestive circumstances” that point to a specific suspect, Ginsburg said. “When there is no improper police conduct there is nothing to deter.”

The decision is a setback for reform advocates. In Pennsylvania, the Advisory Committee on Wrongful Convictions proposed a number of measures to insure the reliability of eyewitness identification. Most of those measures are being challenged by prosecutors and victim advocates. This decision signals that the U.S. Supreme Court is not ready to expand the review of eyewitness identification.

This March the U.S. Supreme Court will hear oral arguments in two cases challenging a sentence of life in prison without the possibility of parole (LWOP) for two men who committed murder at the age of 14.

These two cases seem to be a continuation of a trend by the U.S Supreme Court with regard to youthful violent offenders. In 2005, the U.S. Supreme Court decided Roper v. Simmons, holding that sentencing individuals to death for crimes they committed as youth constituted cruel and unusual punishment under the Eighth Amendment of the U.S. Constitution. Five years later, the Court decided Graham v. Florida, applying much of Roper's reasoning to hold that that it is unconstitutional to sentence individuals under the age of 18 to life without parole in non-homicide cases.

In Jackson v. Hobbs, a 14-year-old Arkansas boy was sentenced to LWOP for his role as an accomplice to the robbery of a video store during which an older teenager shot and killed the clerk. In Miller v. Alabama, a 14-year-old was engaged in a fight during which he and a buddy overpowered a 53-year-old man, and set fire to the victim’s trailer with him lying inside too weak to escape.

Miller beat his neighbor Cole Cannon with a baseball bat until Cannon was unable to move and then set fire to Cannon’s trailer, which Miller promptly exited as Cannon pleaded helplessly, “Why are y’all doing this to me?” Cannon thereafter died of smoke inhalation.

Jackson joined his older friend and cousin in the robbery of a video store. When the robbery victim, Laurie Troup, claimed that she had no money, one of Jackson’s two accomplices shot her to death. Jackson was prosecuted under the doctrine of “felony murder.” The doctrine allows Jackson to be charged with the fatal shooting because he took part in the robbery.

Miller and Jackson were both fourteen years old at the time of their crimes. In each of the two cases, the trial court lacked the discretion to impose a less severe sentence than life without parole.

The Supreme Court will resolve whether a mandatory life sentence for someone as young as 14 constitutes cruel and unusual punishment. Lawyers will argue that LWOP is so rare for an offender 14-years-old and the mandatory nature of the sentence— the defendants have no opportunity to present evidence of mitigation—violate the Eighth and Fourteenth Amendments. The Los Angeles Times wrote that only 73 offenders are serving LWOP for homicides committed at the age of 14 or below.

The trend as mentioned above seems to indicate that the Court will act favorably on Jackson and Miller’s claims. The question is, will the Court outlaw LWOP for all offenders under age 18 or will the decision be more narrow and eliminate LWOP for offenders 15 or 14 years or younger?

The next question, will the court limit its ruling to felony-murder as in Jackson’s case or will it leave the door open to sentencing some young killers to LWOP? I see the Court’s decision being more nuanced than the broad decisions in Roper and Graham.

Thursday, January 19, 2012

The U.S. Supreme Court gave Alabama death row inmate, Corey Maples, a new chance to appeal his death sentence conviction, according to the Los Angeles Times.

Maples had been "abandoned" by his two New York lawyers who left their law firm without telling him and missed the deadline for filing his appeal. "In these circumstances, no just system would lay the default at Maples' death-cell door," Justice Ruth Bader Ginsburg wrote for a 7-2 majority.

Maples was drunk and on drugs when he shot and killed two friends in 1997. A jury voted 10 to 2 to sentence him to death. Afterward, Maples contended that he would have gotten life in prison, not death, if his inexperienced trial lawyers had argued he was thoroughly intoxicated on the night of the murders, reported the Times.

He may have thought he had a lucky break when two young lawyers from the prestigious New York firm of Sullivan & Cromwell agreed to represent him. They enlisted a local lawyer in Alabama to help and filed an initial appeal in 2002.

According to the Times, about 18 months later, a state judge denied the appeal. But by then, the two New York lawyers — Jaasi Munanka and Clara Ingen-Housz — had left the firm for other jobs without telling Maples, the judge or the local lawyer. Copies of the judge's order came back marked, "Return to Sender."

An Alabama court clerk took no action when the letters were returned. After 42 days, the deadline to appeal this order expired. Alabama prosecutors told Maples the door to filing further appeals had closed forever.

The Alabama courts, a federal judge and a U.S. court of appeals all ruled against Maples, citing his "procedural default" at the initial stage.

The Supreme Court ruled for Maples, citing "the extraordinary circumstances quite beyond his control." In a concurring opinion, Justice Samuel Alito said that a "veritable perfect storm of misfortune, a most unlikely combination of events," had come together to unfairly deprive Maples of a chance to appeal, reported the Times.

Wednesday, January 18, 2012

Miami-Dade County has furloughed 118 police officers. Police Department Director Jim Loftus told the Miami Herald that the layoffs have created what he called a “crisis.”

“This is a big hit for us. It hurts in every possible way, but we will find a way to get through this for the betterment of the people we serve. That’s our focus,” Loftus told the Herald.

The layoffs represent roughly 5 percent of the department’s workforce of 2,000 officers. In addition to the 118 layoffs, there were 41 demotions, including some officers moved to public safety aides or other administrative roles.

Miami has the 10th largest police department in America. New York City is number one with nearly 40,000 police officers. Miami's violent crime rate was the 13-highest in the nation.

Tuesday, January 17, 2012

Nearly six months have passed since Pennsylvania Gov. Tom Corbett signed legislation expanding the "castle doctrine" to include home appurtenances, vehicles and public places.

Last year, former Gov. Edward G. Rendell vetoed the same bill just before leaving office. Last spring, the measure was reintroduced in the state House and Senate.

Under the old castle doctrine law, the use of deadly force was not justified if the person could safely retreat, except when the threat was made inside a home or business. The old law required a person outside the home to try to get away from a potential assailant before having a reasonable belief that deadly force was necessary for personal protection.

The reintroduced bill passed the state Senate by a 45-5 vote. The new law establishes that a person shall not be required to retreat in the face of an intrusion or attack outside the person's home or vehicle. It further established that a person is presumed to have a reasonable belief that deadly force is immediately necessary to protect oneself, or other innocent people, from the threat of death, serious bodily injury, kidnapping or rape. The legislation also limits civil liability for people who act within the dictates of the statute.

The governor signed the legislation into law during a private ceremony at the state Capitol on June 28, 2011. Since that time there has not been a rash of gun battles across the commonwealth as some had feared, but there is certainly not an absence of interesting cases to test the new law.

Recently, Somerset County District Attorney Jerry Spangler cited the castle doctrine as the basis for not pursuing a homicide charge against a man who fatally shot the lover of the man's wife outside his home with a compound bow, according to the Pittsburgh Tribune-Review.

On Oct. 9, Tony Bittinger left a message for his girlfriend, Carl Woolley's wife, saying he was going to "put a hole in [Woolley's] head." Bittinger then drove 37 miles with his two brothers to Woolley's home in Somerset County, Pa. Once he arrived, swinging a wooden club, he confronted Woolley and began to climb the front porch steps, according to the state police, as reported by the Tribune-Review.

Bittinger was intoxicated with a blood-alcohol level of .18 percent. Woolley repeatedly asked Bittinger to leave before retrieving a bow and arrow from his living room and shooting him in the chest.

The district attorney acknowledged that the newly expanded castle doctrine played a role in the decision not to prosecute Woolley.

In Westmoreland County, the district attorney withdrew attempted homicide charges against a psychologist, Charles P. Gallo, who shot a man after an incident of road rage. The charges were withdrawn because the motorist who was shot, Patrick James Pirl, refused to testify at a preliminary hearing before a Ligonier District justice, according to the Tribune-Review.

Gallo told police he was driving between 40 and 45 mph on Route 30 when Pirl allegedly started tailgating him. He told police he felt forced to shoot after Pirl turned his truck around and headed straight for Gallo's car.

"Gallo said he tried to back up away from the white truck when it started to charge at him. He felt that he had no place to go and felt threatened, so he pulled a Glock semiautomatic pistol and fired two shots at the white truck," the Tribune-Review reported.

This case is interesting in that the district attorney filed charges against the shooter, believing Gallo was not justified in shooting Pirl to protect himself from serious bodily injury. Was Pirl's vehicle a weapon, and did Gallo fear for his safety? We may never know, because Pirl wisely refused to testify against Gallo to protect his Fifth Amendment right against self-incrimination.

Washington County police and the district attorney are continuing to investigate the July 2011 shooting of Ezequiel Jeremy Pando of Lovington, N.M., who entered a home in the city of Washington, Pa., by force. He was killed by a gunshot wound to the chest.

Police Chief James Blyth told WTAE-TV that Pando had dated a woman who lived at the home, and that the woman, her current boyfriend and her two children were in the house when Pando kicked in the door.

The police know who the shooter is, but have not yet charged him. The Washington County District Attorney's Office is investigating whether the shooting was justified under the castle doctrine.

Last month, Joshua Levin and his son, Zachary Levin, were called by Joshua Levin's estranged wife to pick her up at her new boyfriend's home in Montgomery County after an argument. The Levins showed up with a baseball bat and wooden club. Joshua Levin was wounded and Zachary Levin, a student at Boyertown Area Senior High School, ended up dead.

According to Montgomery County District Attorney Risa Vetri Ferman, as reported by The Philadelphia Inquirer , Zachary Levin had a club and his father had an aluminum bat. The unidentified boyfriend retreated to his pickup truck and retrieved a .40-caliber semiautomatic handgun that was properly licensed.

Displaying the weapon did not deter the Levins. According to the district attorney, the Levins continued to poke him and hit his truck, eventually trapping him. The boyfriend allegedly struck Joshua Levin in the head with the handgun to back him off.

Zachary Levin then allegedly hit the boyfriend with the wooden club and was shot in the chest. As Joshua Levin was about to strike the boyfriend with the bat, he was shot in the arm, according to the district attorney. The boyfriend then called 911, according to the Inquirer.

A common theme with three of these cases is the "love triangle." Does the heightened emotional connection between these actors in any way diminish the objective nature of the decision to use lethal force? In other words, would someone involved in a relationship with an alleged assailant have some motive to kill for reasons other than personal protection from death, serious bodily injury, kidnapping or rape?

The castle doctrine provides a presumption that a person using lethal force acted reasonably if specific circumstances exist as defined by the statute. Can a prosecutor rebut that presumption by proving that the person who used lethal force had a motive to kill?

Is it unreasonable to let a jury decide if a homicide was the result of an immediate physical threat or an illicit affair with the shooter's spouse?

Monday, January 16, 2012

The Massachusetts Supreme Judicial Court has confirmed a little-known judicial power that permits judges to ignore prosecutors and shorten criminal sentences in plea deals if the Court believes “justice may not have been done.’’

In Massachusetts a judge can trump the DA on the low side. The judge can lower the length of a sentence but cannot increase the length. A defendant can make a deal and then go into court and argue for better knowing he cannot get worse. Is is that fair, is it justice?

If a judge thinks a sentence is too harsh it can be lowered. The prosecutor who has prepared the case, interviewed witnesses, reviewed the evidence, talked with the victims and made a plea offer can be overruled by a judge who may have reviewed the file before the plea hearing or at most conferred with the prosecutor, defense attorney, police and defendant during the plea hearing.

In a 6-1 decision, the Supreme Judicial Court’s decided to make it clear that judges are allowed to shorten sentences because of mitigating circumstances. The state’s statute on judicial powers of sentencing is hazy: A judge cannot “impose a sentence that exceeds the terms of the [plea bargain] recommendation,” but the law says nothing about whether a judge can shorten the sentence agreement, reported the Boston Globe.

In a statement obtained by the Globe, Suffolk District Attorney Daniel F. Conley said he thinks the decision will have a “damaging effect” on the criminal justice system.

“This novel interpretation of a long established rule means that prosecutors, the elected voice of the people, are now the only party in a courtroom who will be held to their word,” wrote Conley, whose office was involved in one of the cases. “Judges are no longer required to honor the terms of any agreement that protects the public’s interest – only a defendant’s interest.”

Tom Hoopes, chairman of the Massachusetts Bar Association’s Fair and Impartial Courts Committee, said the decision is part of a nationwide trend of giving judges more power to determine sentencing.

“The buck does, and should, stop with the justice,” Hoopes told the Globe.

Still, he said, he does not anticipate the decision having much of a day-to-day effect on the criminal court system.

“I think cases like this are so rare that they’re not going to really impact the way prosecutors, defense attorneys, and judges do the business of justice,” Hoopes said.

Sunday, January 15, 2012

The Centers for Disease Control recently removed homicide as a leading cause of death. For the first time since 1965 homicide was not on the list of the top 15 causes of death as tabulated by the CDC. See my recent blog.

Homicide has declined dramatically over the last two decades. Some cities, like New York, have their lowest homicide rate in nearly a half a century. Criminologists have debated the reasons for the decline but believe several factors may be at work. We have long heard about the decline in the demand for crack cocaine, incarceration rates, better and more policing, better trauma care for shooting victims, an aging population even abortion.

The new theory: Abusive relationships don't end in murder as often as they once did, thanks to increased incarcerations and better, earlier support for victims.

"We've taken the home out of homicide," said James Alan Fox, a Northeastern University criminologist who studies murder data.

There has been a dramatic increase in domestic violence programs and law enforcement protocols for handling domestic violence. The issue has been served by public awareness campaigns and expansive government funding. Domestic violence and its impact on homicide rates is an interesting issue which needs further examination.

Saturday, January 14, 2012

State Representative Brendan Boyle, (D., Philadelphia), has introduced legislation that would enable "innocent" people to be set free if wrongfully convicted. Everyone is in favor of freeing innocent people who have been wrongfully convicted. Some would question releasing people who have been proven guilty beyond a reasonable doubt, but now a question has been raised about some of the evidence.

"My legislation would make the withholding of this evidence, regardless of when it is obtained, a violation of the defendant's rights," Boyle said.

Prosecutors would be required to turn over exculpatory evidence within 5 business days of obtaining it.

The proposed legislation raises some interesting questions about fairness and the search for truth. If the evidence is not turned over in five days are the charges automatically dismissed and the accused set free? When does the clock begin to run? If evidence is discovered and sent for testing does the clock run when the evidence is discovered or tested.

The discovery of exculpatory evidence does not mean that an accused is innocent. If the evidence is discovered after trial the accused may be entitled to a new trial--but what is fair about dismissing the charges? A new trial could result in another conviction. The legislation raises many question that rigorous debate may answer.

The Pennsylvania Innocence Project has pledged support for the legislation. Attorney Marissa Bluestine, legal director of the Innocence Project, stated:

"The Pennsylvania Innocence Project supports any efforts to ensure that only the truly guilty are prosecuted. While there have been isolated incidents of intentional misconduct by prosecutors, we are grateful for the prosecutors who serve their functions every day with honor and integrity. No prosecutor wants an innocent person in prison. This legislation provides guidance for prosecutors in handling issues which arise in the post-conviction setting where no current guidelines exist. Together with Senate Bills 1337 and 1338, pending before the Pennsylvania Senate Judiciary Committee, Representative Boyle's proposal is geared toward the particular goal of ensuring that only the guilty are prosecuted and the innocent go free."

Vomit causes more deaths than murderFor the first time in nearly half a century, homicide has fallen off the list of the nation's top 15 causes of death, according to the Associated Press.So, you’re worried about walking down the street at night? More people die in this country as a result of aspirating their own vomit—breathing the vomit into their lungs—than by homicide.The 2010 list, released by the Center for Disease Control, reflects at least two major trends: Murders are down, and deaths from certain diseases are on the rise as the population ages, health authorities said.Homicide was overtaken at No. 15 by pneumonitis, seen mainly in people 75 and older. It happens when food or vomit goes down the windpipe and causes deadly damage to the lungs.This is the first time since 1965 that homicide failed to make the list, according to the Centers for Disease Control and Prevention, reported the Associated Press.The government has been keeping a list of the top causes of death since 1949. Homicide has historically ranked fairly low. It was as high as 10th in 1989 and in 1991 through 1993, when the nation saw a surge in youth homicides related to the crack epidemic.According to the Associated Press, murders have been declining nationally since 2006, according to FBI statistics. Falling homicide rates have been celebrated in several major cities, including New York City, Detroit and Washington.To read more: http://www.miamiherald.com/2012/01/11/v-print/2584440/murder-not-a-top-cause-of-death.html#storylink=cpy

Friday, January 13, 2012

Pennsylvania provides former offenders with few opportunities to clear their criminal records.

Under current law an offender’s criminal record may be expunged, with court approval, when the offender reaches age 70 and has been free from arrest for ten years following release from confinement or community supervision. Also, an individual convicted of a summary offense who has been free from arrest for five years following a conviction may seek to have the conviction expunged.

The Pennsylvania legislature has considered expanding the opportunity for those convicted to get a clean slate. In 2007, the house passed a bill expanding the grounds for expungement to certain misdemeanors. It didn’t go anywhere .

Last session, expungement legislation was re-introduced and the house passed a bill by a vote of 104 to 91. The Senate Judiciary Committee reported the bill out from committee but the bill sat without a vote for the remainder of the session.

During the current legislative session, State Senator Tim Solobay (D., Canonsburg) introduced S.B. 1220. The legislation provides that an offender may seek to remove a conviction if it was a misdemeanor of the third degree and the offender has been free of arrest for seven years; or a misdemeanor of the second degree if the offender has been free of arrest for ten years following release from confinement or community supervision.

The bill has bi-partisan support. "The sentence they were given," said Stewart Greenleaf (R., Montgomery), chair of the Senate Judiciary Committee and a bill cosponsor, "it wasn't to punish them for the rest of their lives."

Thirteen states, including Texas known for its tough law and order legislation, recently expanded their expungement laws. New Jersey allows certain nonviolent felony convictions to be expunged 10 years after release from confinement. For misdemeanors, the waiting period is five years.

Earlier this week, Mathew K. Higbee, chairman of the Foundation for Continuing Justice, wrote in the Post-Gazette supporting expungement legislation, “Studies consistently show that individuals who are without employment or a connection to their communities are far more likely to commit criminal offenses.”

How does an employer know when it’s alright to disregard a criminal record? Researchers in Pittsburgh are looking for the answer. CMU’s Alfred Blumstein and Kiminori Nakamura believe that their research provides the criminal justice community with the first scientific method for estimating how long is "long enough" for someone with a prior record to remain arrest-free before being considered "redeemed" by a prospective employer.

Their research found, in part, that an 18 year-old convicted of robbery is no more likely to commit another crime than the rest of the population once 7.7 years have passed crime-free since the offense.

The research promises to be more helpful to former offenders than S.B 1220. The pending legislation applies only to low-level offenses. Those most burdened by criminal records are those with felony convictions. Policymakers are less likely to provide an opportunity to erase serious felony convictions.

Thursday, January 12, 2012

Jordan Brown is accused of shooting his father's pregnant girlfriend while she slept. He was 11-years-old at the time. The killing occurred three years ago and his case continues to wind its way through the Pennsylvania courts. Initially, the issue was whether Brown should be tried as a juvenile or an adult and face life in prison. That issue made it to the Pennsylvania Superior Court.

The issue was resolved and Brown faces prosecution as a juvenile. Now his case is back in Superior Court this time to determine if his juvenile trial should be open to the public.

Attorneys from the Pittsburgh Post-Gazette and two other newspapers recently argued before the Superior Court that journalists and the public have a constitutional right to attend the juvenile trial.

Lawrence County judge in August decided that Brown, who is now 14, should be handled in juvenile court and closed to the public. But the Post-Gazette, Pittsburgh Tribune-Review and New Castle News appealed a judge's decision barring access to the proceedings, putting the decision about whether to open the trial in the hands of a three-judge Superior Court panel.

According to the Post-Gazette, attorneys for the newspapers said there is a compelling public interest to open the case, and that privacy rights that usually apply to juveniles do not apply because the February 2009 killings have already received so much publicity.

Jordan's defense attorney, however, said the extensive publicity is all the more reason why Jordan's case should remain closed. He said a common pleas judge did not abuse his discretion under the state's Juvenile Act, which allows open hearings for children 12 and older who are accused of heinous crimes.

Jordan's attorneys and the attorney general's office, which is trying the case, interpret the statute as implicitly barring public access to hearings of children younger than 12, reported the Post-Gazette.

Wednesday, January 11, 2012

NAACP President Benjamin Jealous has called for the end of the death penalty in Maryland and around the country, reported the Washington Post.

Maryland’s death penalty has been on hold since a 2006 Court of Appeals ruling found the state’s lethal injection protocols were not properly approved by the legislature. New execution protocols must be approved before executions can resume in Maryland. Maryland Governor Martin O’Malley, a death penalty opponent, pushed for repeal of the death penalty but later compromised and settled for tighter restrictions on biological evidence such as DNA, videotaped evidence of a murder or a videotaped confession, reported the Post.

“People in this country care about fairness,” Jealous said at a news conference in Annapolis with other civil rights leaders and state lawmakers opposed to capital punishment. “They’re outraged about what happened to Troy Davis. They want to see our country join the rest of the western world and abolish the death penalty. In order to get there, Maryland has to do it.”

“We’ve abolished it in Illinois in recent years; we’ve abolished it in New Jersey in recent years; we’ve abolished it in New Mexico in recent years, and there is no reason why it has not been abolished here, except for a few politicians who have gotten in the way,” according to Jealous as reported in the Post.

Some Maryland lawmakers will seek a repeal in the legislative session that begins Wednesday. They say they have a majority of support in both the House and Senate, but they say they are one vote shy on a Senate committee to move the bill to a full vote.

According to the Post, Maryland has five men on death row, and five inmates have been executed since Maryland reinstated the death penalty in 1978. Wesley Baker was the last person to be executed in Maryland, in December 2005.

Tuesday, January 10, 2012

They say justice is blind. It must be to ignore the plight of the mentally ill in America’s prisons.

The Milwaukee Journal Sentinel’s recent two-part series on serious mental illness highlights the shortcoming inherent in a failed system. Wisconsin is far from the only state to push the mentally ill off on the criminal justice system.

An internal review of conditions inside a North Carolina prison, recently obtained by the Associated Press, found that inmates held in solitary confinement were often locked in cells for extended periods without being let out for meals, recreation time or even showers.

This past February, a North Carolina inmate being secured in solitary confinement had a doctor’s order requiring one hour of exercise per day in the prison’s day room. A review of prison records found that the inmate had not left his cell for 78 days consecutive days.

This is not an isolated case.

According to research published in the Harvard University Civil Rights-Civil Liberties Law Review, the mentally ill typically account for as much as one-half of the population in solitary confinement. In Wisconsin, a 2010 audit of three state prisons reported that “between 55 percent and 76 percent of inmates in segregation [solitary confinement] are mentally ill,” according to a report published in The Crime Report.

Last year, a Utah prisoner suffering from schizophrenia and bipolar disorder died of starvation and dehydration after spending four months in the Salt Lake County Jail. A significant period of his incarceration was spent in solitary confinement. Twenty-year-old Carlos Umana weighed approximately 180 pounds when he entered the jail; when he died, he weighed just 77 pounds.

Why would a young man suffering from mental illness, to the point that he would starve himself to death, be in prison?

According to National Public Radio, the answer is simple; the three largest inpatient psychiatric facilities in the country are the Los Angeles County Jail, Rikers Island in New York City and Cook County Jail in Illinois.

Jails and prisons are America's de facto psychiatric hospitals.

As a member of the Pennsylvania Board of Probation and Parole, my number-one priority is public safety. There are, at times, inmates with severe mental illness who might not be suited for prison. Nonetheless, many are also too dangerous to be released directly to the street.

During the 1960s, policymakers across the country decided to close mental health institutions in favor of community treatment. In 1955, there was one psychiatric hospital bed for every 300 Americans.

Today, according to the Treatment Advocacy Center, a Virginia-based non-profit dedicated to the treatment of severe mental illness, there is one psychiatric hospital bed for every 3,000 Americans. As the Journal Sentinel reported, there are 20 times as many people with mental illness in jails and prisons as there are in psychiatric hospitals.

As it became obvious that the community treatment experiment was not working, some policymakers found it easier and less expensive to stigmatize mentally ill persons as criminals and send them to prison, rather than to treat them with the attention and compassion that is required for those suffering from a debilitating disease.

Once in prison, mentally ill inmates have a difficult time getting out. Prison rules are often violated by offenders who believe cellmates, guards and even family at home are out to harm them.

The mentally ill are often targeted by fellow inmates who are aggravated by the strange manifestations brought on by their illness. Mentally diseased inmates may have a problem concentrating in programming and therefore fail to complete required treatment programs.

Prisons are not completely to blame.

Prison medical systems were not designed nor equipped to provide quality mental health services to prisoners in need. Seriously mentally ill inmates often face overworked or undermanned staff overwhelmed with the need to evaluate and implement treatment plans for an ever growing population of ill inmates.

Our board and the Pennsylvania Department of Corrections work extremely hard to assist inmates with mental illness transition back into the community. Some of my colleagues have committed considerable time and energy to this process.

Such efforts do not eliminate the fact that an absence of available psychiatric hospital bed space makes it extremely difficult to place those inmates with violent criminal histories and intensive treatment needs.

Until we are willing to acknowledge that our prisons have become de facto mental hospitals— and unless we are willing to make the hard and costly decisions that both protect the public and humanely treat those inflicted with disease— I believe the American mental health gulag will continue to indelibly blur the line between justice and expediency.

Monday, January 9, 2012

The FBI's more than eight-decade-old definition of rape has been revised to count men as victims for the first time and to drop the requirement that victims must have physically resisted their attackers. The new definition will increase the number of people counted as rape victims in FBI statistics, but will not change federal or state laws nor alter charges or prosecutions, according to the Associated Press.

Since 1929, the FBI has defined rape as the carnal knowledge of a female, forcibly and against her will.
The revised FBI definition says that rape is "the penetration, no matter how slight, of the vagina or anus with any body part or object," without the consent of the victim. Also constituting rape under the new definition is "oral penetration by a sex organ of another person" without consent.

The issue got top-level White House attention starting last July, when Vice President Joe Biden raised it at a Cabinet meeting. According to the Associated Press, Biden said the new definition is a victory for women and men "whose suffering has gone unaccounted for over 80 years." Calling rape a "devastating crime," the vice president said "we can't solve it unless we know the full extent of it."

Using the old definition, a total of 84,767 rapes were reported nationwide in 2010, according to the FBI's uniform crime report based on data from 18,000 law enforcement agencies, reported the Associated Press. Nearly 1 in 5 women and 1 in 71 men in the U.S. have been raped at some time in their lives, according to a 2010 survey by the National Center for Injury Prevention and Control of the Centers for Disease Control and Prevention, which used a broader definition.

Most people with mental illness are not violent, reports the Milwaukee Journal Sentinel. Fewer than 1% of people with chronic and severe mental illness are known to be dangerous, according to the most recent studies. But identifying those who are dangerous and getting them into care have been exceedingly tricky and contentious matters. A 2008 study found as many as 10% of homicides were committed by people with untreated mental illness.

E. Fuller Torrey, a psychiatrist, founded a national organization to track the cases of violence committed against people with untreated mental illness. A shift 50 years ago to a federal mental health care system weakened care for people with psychiatric illness, he says.

"Rarely in the history of the American government has a program conceived with such good intentions produced such bad results," Torrey said in a recent essay. "The patients were deinstitutionalized from the state hospitals, but most of the 763 federally funded community mental health centers failed to provide services for them."

Torrey's organization lobbies for laws that more easily allow state officials to compel patients into care - either in hospitals or, more commonly, with court orders that allow patients to live in the community as long as they comply with treatment plans, reported the Journal Sentinel.

Thomas Zander, a retired lawyer and psychologist who has worked for 40 years to limit the government's ability to commit mental patients, says civil commitment is the least effective and most expensive means of providing care.

Sunday, January 8, 2012

Gary Roland Welch was executed on January 6, 2012 for fatally stabbing 35-year-old Robert Hardcastle during a drug dispute in 1994. He was declared dead at 6:10 p.m. local time at the state penitentiary in McAlester, Oklahoma.

According to MSNBC, minutes before the lethal drugs were administered, other death row inmates could be heard banging on their cell walls, and Welch paid tribute to them during his final statement.

"I was just going to ask everybody if they could hear my brothers out there," Welch said. "I know it's kind of quiet now, but I want to acknowledge that my brothers are here with me to send me off on my journey. They are here on my behalf. They've already given me my little send off. So let's get it on because that's what we're here for."

Before he died, Welch chanted apparent references to Norse mythology, which he had studied behind bars. On his fourth chant, Welch passed out as the drugs began to kick in.

Earlier in the day, he was given fish from Long John Silver's for his last meal, prison officials said.

At his request, nobody attended the execution on his behalf, and Hardcastle's family members declined comment afterward, reported MSNBC.

Welch's execution came nearly three weeks after he tried to kill himself by slitting his throat with a smuggled shaving razor. Prison officials and Welch's own court-appointed attorney insisted he was sane and understood his fate.

Welch was the first execution of 2012. There were 43 executions in 2011. The execution brings to 1,278 the number of people executed in the United States since capital punishment was reinstated in 1976.

The Sixth Amendment to the U.S. Constitution guarantees, to every person accused of a crime, the right to a trial by jury. That right is also ingrained in Article I of the Ohio Constitution. In fact, Ohio is one of only 21 states that continue to leave the request for a jury trial exclusively in the hands of the defendant. However, not every defendant wants to face a jury.

There are a number of tactical reasons that would require a defendant to request a trial in front of a judge as opposed to a jury. A defendant raising technical legal claims may prefer a learned judge over a group of laymen unfamiliar with the nuances of the law.

A defendant with a lengthy criminal record may prefer a judge who has seen many defendants with checkered pasts as opposed to jurors new to the realities of the criminal justice system.

Unfair bias

At times, a crime is so heinous that a jury may be repulsed by the facts. A defendant may choose to take her chances with a judge and avoid the unfair bias that comes with the appalling circumstances of some crimes.

Finally, some defense attorneys judge shop. If the case is assigned to a judge who has been known to be lenient in certain circumstances, the defense will seek a trial in front of that judge without a jury.

Therein lays the concern, for some, with Ohio’s law. While the law is clear that a defendant is entitled to a trial by jury, there is no corresponding “right” for a defendant to demand a trial in front of a judge. Nearly a half century ago, the U.S. Supreme Court held that there is no constitutional right to a criminal trial in front of a judge. Yet that is precisely what happens in Ohio. The prosecution has no options once a defendant waives a trial by jury. That may soon change.

The Legislature is considering H.B. 265. The bill seeks to condition the defendant’s ability to waive a jury trial on the consent of the prosecutor and court. Essentially the bill would empower prosecutors to demand a jury trial, thus giving them veto power over a defendant’s attempt to waive the right.

Although the District of Columbia, the federal government and most states have similar laws that limit a defendant’s exclusive right to select the form of trial, this bill is not without its detractors.

Some suggest that H.B. 265 would supersede the authority of the Supreme Court Commission on the Rules of Practice and Procedure. A Judicial Impact Statement prepared by the Ohio Judicial Conference suggested, “Although the General Assembly may desire to express its will that prosecutors also be able to demand a trial by jury, the General Assembly does not have the authority to establish court procedures in conflict with an existing Ohio Rule of Criminal Procedure.”

The Supreme Court Commission overwhelmingly refused to provide prosecutors the right to demand a jury trial over the objection of defendants, finding that to do so would be “patently unfair to defendants.” The position of the Judicial Conference is that the H.B. 265 cannot be implemented because the Ohio Constitution expressly granted the authority to oversee the courts to the Ohio Supreme Court.

Ballot-box issue

There may be another way to get this done. In 1998 Pennsylvania voters approved a constitutional amendment. The question presented to the voters was simple: “Shall the Pennsylvania Constitution be amended to provide that the Commonwealth shall have the same right to a trial by jury in criminal case as does the accused?”

A constitutional amendment may be the only way to provide Ohio prosecutors with the same authority.

Saturday, January 7, 2012

The court martial of Staff Sgt. Frank Wuterich began on January 4. He faces charges of manslaughter and assault. Wuterich was the squad leader on the day a roadside bomb exploded in Haditha, Iraq beneath a Marine convoy, killing one Marine and injuring two others, reported the Los Angeles Times.

In a futile search for the insurgents who planted the bomb, Marines killed five young men standing next to a car and then swept through three houses killing 19 more people, including three women, seven children, and a 76-year-old man in a wheelchair.

Four Marines, including Wuterich, were charged in 2006 in connection with the Iraqi deaths; four Marine officers faced charges that included dereliction of duty, obstruction of justice and making false statements, according to Military.com.

Charges have since been dropped against six of the Marines, while one was acquitted, leaving only Wuterich to face prosecution.

When the Haditha story broke in 2005, it was likened to the massacre of Vietnamese civilians at the village of My Lai in 1968. In May 2006, the late Congressman John Murtha, a powerful Pennsylvania Democrat, and himself a war hero, claimed to have seen an internal investigation of the killings that found the Marines deliberately killed unarmed civilians.

“There was no firefight, there was no IED that killed these innocent people,” he said. “Our troops overreacted because of the pressure on them, and they killed innocent civilians in cold blood.”

According to the North County Times, a recent lawsuit filed by a Michigan law firm seeking records related to Wuterich investigation suggests that his arrest was scapegoating by the U.S. government to appease the Iraqis.

Friday, January 6, 2012

The court martial of Sgt. Frank Wuterich began this week in California on charges of manslaughter and assault. Wuterich, was a squad leader in Haditha, Iraq in 2005 when a roadside bomb exploded, killing a Marine and injuring two others. In the aftermath of the attack, 24 Iraqis were killed including women and children.

Most of what we know about military trials comes from Hollywood. This is not to diminish the gravity of the ongoing proceeding, but three pictures that do “justice” to military trials are Paths of Glory, Breaker Morant and A Few Good Men.

Paths of Glory, released in 1957, was based on a novel by Humphrey Cobb. The novel was loosely based on the court-martial and execution of four French soldiers during World War I. Kirk Douglas played Colonel Dax, a unit commander, who was a lawyer in civilian life. He defended the soldiers charged with cowardice after they refused to continue a suicidal attack.

The trial was a predetermined exercise to set an example for the rest of the French army. Colonel Dax, well aware of his clients’ fate, memorably told the court, “Gentlemen of the court, there are times that I'm ashamed to be a member of the human race and this is one such occasion.”

Breaker Morant was an Australian film released in 1980. The movie was also based on a true story. The movie explores, in detail, the court-martial of three Australian soldiers, carrying out unwritten orders to kill Dutch prisoners of war during the Boer War in 1902. The movie won a Golden Globe for best foreign film. The court room action is entertaining as typified by this exchange during the examination of a prosecution witness:

Prosecutor: How did Lt. Handcock look?
Witness: Like he was thinking, sir... like... I can't think of the ...
Prosecutor: Did he look like he was agitated?
Witness: Agitated? Yes, that's it, sir. Yes, sir, he looked agitated.
Defense Attorney: Objection. Major Bolton (prosecutor) is leading the witness.
Prosecutor: I will rephrase the question, sir. Tell me, how did Lt. Handcock look?
Witness: Agitated, sir!

The final film, A Few Good Men, was released in 1992. Originally written as a play and adapted for the big screen, the movie is based, in part, on a real incident that occurred at the Guantanamo Bay naval base.

Two Marines are on trial for carrying out a ‘Code Red’ order that resulted in the death of another marine. The code was ordered by the base commander to bring a wayward Marine into line. The movie’s well known ending, with Tom Cruise as Lt. Kaffee and Jack Nicholson as Colonel Jessup, lights up the screen with one of film’s all-time great cross-examinations.

The lead-up to, “You can’t handle the truth,” is so well underplayed that it is often forgotten. As Lt. Kaffee’s examination seems to unravel, Colonel Jessup goads him into the decisive confrontation, “Now, are these the questions I was really called here to answer? Phone calls and foot lockers? Please tell me that you have something more, Lieutenant. These two Marines are on trial for their lives. Please tell me their lawyer hasn't pinned their hopes to a phone bill.”

If you haven’t seen them, all three films are worth watching. If you have seen them, they’re worth another look.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.